from Jarman on Wills, are cases of vested remainders. No case is cited, and none has been found, where a contingent remainder following a particular estate, given on a condition which has failed, has been held to have been accelerated by the failure of the particular estate to vest, on account of the nonperformance of the condition. Where a widow is given a life interest and elects to take against the will, or where, as in one of the cases in Jarman, a monk is given a life estate which he is unable to take, the life tenants are regarded as if dead, and the vested remainders are accelerated accordingly. But in the case at bar the interests of the appellants were not vested; they were contingent, and that to a remote degree. Karl F. Miller took no estate, because he did not answer to the description required, and was not able to fulfill the conditions upon which he was take. It should be remembered that the gift to these appellants does not depend on the nonfulfillment of the conditions prescribed by testatrix; but, on the contrary, it depends upon their fulfillment. No provision was made for the disposition of the fund in the event of a failure to fulfill the conditions; therefore an intestacy results from the failure. The facts appear in the opinion of the Supreme Court and in Gunning's Estate (Nos. 1, 2) 83 Atl. 60, 61. Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Jesse T. Lazear, W. A. McConnel, J. C. Boyer, Thomas C. Lazear, and H. V. Blaxter, for appellant. W. H. S. Thomson and Frank Thomson, for appellee Greer. Thomas and E. W. Arthur, for appellees McCombs and others. W. S. POTTER, J. The only question raised by this appeal is whether the legacies should bear interest from the expiration of one year after the death of the testatrix. The portion of the will bearing upon this question is as follows: "In event of my death I wish my property, 602 Liberty St., and 5435 Potter St., sold, provided a good price can be gotten for both. My property on Liberty St. should bring one hundred and seventy five thousand dollars, Potter St., not less than five thousand. If they cannot be sold at those figures I wish the property kept a while until a good price can be gotten; in the meantime the taxes, interest, insurance to be paid out of the rentals. The court below so held, and its decree in When my property is sold I wish to be this respect is affirmed. (234 Pa. 148) In re GUNNING'S ESTATE. (No. 3.) Appeal of McCONNELL. (Supreme Court of Pennsylvania. Jan. 2, 1912.) 1. WILLS (§ 734*)-RIGHTS OF LEGATEESINTEREST ON LEGACY. A legacy bears interest from the time it is payable under the terms of the will; the rule that interest runs from the expiration of a year from testator's death applying only when the will does not direct payment at a particular time. given to Mazie McCombs ten thousand dollars to Nellie Danner ten thou sand, etc., * making in all $58,000." The testatrix died July 18, 1905. The Liberty street property was sold in 1911, by her executor at public sale, in pursuance of an order of the orphans' court, for $93,000, and the proceeds of the sale were included in the executor's fourth account. The auditing judge found as matter of fact that "it was not possible to sell the real estate at any time since decedent's death for a price approximating the value set upon the Liberty street property. The delay in the sale was caused by the endeavor of the trustee (executor) to get the best possible price for the [Ed. Note. For other cases, see Wills, Cent. benefit of the residuary legatees or heirs. Dig. $ 1847-1872; Dec. Dig. § 734.*] There is no evidence of any willful delay or 2. WILLS (8 734*)-RIGHTS OF LEGATEES-neglect." Interest upon the legacies of $58,INTEREST ON LEGACY. Where testatrix provided for the sale of certain property, expressing the desire that it should not be sold for less than a price named, and a delay in sale was due to the effort of the personal representatives to procure the best price, it is error to allow interest on legacies from the proceeds of the sale from the expiration of one year from the death of testatrix. [Ed. Note. For other cases, see Wills, Cent. Dig. 1847-1872; Dec. Dig. § 734.*] Appeal from Orphans' Court, Allegheny County. In the matter of the estate of Anna M. Gunning. From a decree dismissing the exceptions to the adjudication, Sarah McConnell appeals. Modified. 000 was allowed from the expiration of one year from the death of testatrix, amounting to over $14,000. An exception was filed by an heir at law who had an interest in the The court dismissed balance of the fund. the exception, and that dismissal is here assigned for error. [1] It is plainly reasonable, and the au thorities agree, that a legacy bears interest from the time it is payable under the terms of the will. If the time is not fixed, then interest runs from the expiration of a year from the testator's death. In Page's App., 71 Pa. 402, Mr. Justice Agnew said: "This is a vested legacy, but the time of payment is deferred until the legatee shall arrive at age. eFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes him. (234 Pa. 218) (Supreme Court of Pennsylvania. Jan. 2, 1912.) 1. CARRIERS (8 187*)-CONTRAct for Freight -OTHER CONTRACT-EVIDENCE- QUESTIONS FOR JURY. In an action against the terminal carrier for loss of perishable freight, whether a through contract of shipment was made with the defendant, or whether a contract for line terminal transportation was executed with the initial carrier, held for the jury. In such a case the rule is well settled that interest does not run upon the legacy until it | CATANZARO v. PENNSYLVANIA R. CO. falls due. Leech's App., 44 Pa. 140; Kerr v. Bosler, 62 Pa. 183. Section 47 of the Act of February 24, 1834 (P. L. 82), requiring the executors, after one year has elapsed, to pay and deliver legacies under the direction of the orphans' court, affords no countenance to the running of interest after the expiration of the year. When a testator bequeaths a sum of money and fixes the time of payment, he determines by that act the [Ed. Note.-For other cases, see Carriers, precise sum to be paid at the time fixed by Cent. Dig. §§ 851, 852; Dec. Dig. § 187.*] The only exception to this rule is 2. CARRIERS (§ 187*)- Loss OF FREIGHT OTHER CONTRACT-MODIFICATION. where the law infers an intention to pay in- Plaintiff having contracted for the transterest from the relation in which the testa-portation of fruit from Boston to Pittsburgh tor stands to the legatee." Our Brother with the agent of defendant terminal carrier, Brown, in Hermann's Est., 220 Pa. 52, 58, to the initial carrier orders on its blanks for and having left Boston, plaintiff's agent gave 69 Atl. 285, 287, quotes with approval the fol- the shipment of the goods routed over defendlowing language from Wheeler v. Ruthven, ant's line, and thereafter accepted receipts or 74 N. Y. 428, 30 Am. Rep. 315: "The rule bills of lading from the initial company; the agent testifying that the giving of the orders that a legacy is payable one year after the was a mere matter of form, and given, as he testator's death only applies in the absence supposed, pursuant to the contract already of a direction in the will controlling the gen- that the giving of such orders and the acceptraade with defendant terminal carrier. Held, eral rule established by the courts, or other ance of the receipts or bills of lading from decisive indication in the instrument, inter- the initial company did not constitute an abanpreted in the light of the surrounding cir- donment or modification of the original concumstances of a different intention on the matter of law, so as to preclude a recovery on tract made with the terminal company, as a part of the testator." such contract against the terminal company for loss of the fruit. [2] An extract from the opinion of Judge Over, in Lewis' Est., 52 Pitts. Leg. J. 367, fits closely the facts of the present case. He there said: "The testator knew that it would be necessary to sell his real estate before there would be any funds which could be applied to the payment of the legacies; his provisions for his daughter Florence, indicate that he anticipated there would be delay in selling it; and his intention seems to have been that the legacies should not become due and payable until the fund realized from the conversion of his real estate could be distributed. It follows therefore that no interest is to be allowed on these legacies." So here, the testatrix knew that the legacies could not be paid until the real estate was sold. She placed a high valuation upon the property, and said if it could not be sold at that figure it was to be kept a while, until a good price could be obtained. Then she goes on to say, "When my property is sold, I wish to be given," etc. Until that time arrived, after some delay if need be, no part of the legacies was to be paid, nor could it be, for the fund from which they were payable was the proceeds of the real estate. The time fixed for payment of the legacies was "when" the property was sold. It follows that no interest should have been allowed upon these legacies. The assignments of error are sustained, and it is ordered that the decree of distribution be modified in so far as it allows interest upon the preferential legacies mentioned in the will. Cent. Dig. §§ 851, 852; Dec. Dig. § 187.*] [Ed. Note.-For other cases, see Carriers, Appeal from Court of Common Pleas, Allegheny County. Action by Salvatore Catanzaro, doing business as S. Catanzaro & Co., against the Pennsylvania Railroad Company to recover the value of a consignment of fruit, damaged in transit. From a judgment for plaintiff for $8,270.92, defendant appeals. firmed. Af Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Thomas Patterson and James R. Miller, for appellant. J. Roy Dickie and Wm. W. Wishart, for appellee. STEWART, J. When this case was before us in 230 Pa. 305, 79 Atl. 624, we held though not the point on which our decision of the case rested-that, notwithstanding ment from the plaintiff, addressed to the there appeared in evidence orders for shipBoston & Maine Railroad Company, and receipts given for the goods by the latter company, on the evidence presented, it remained a question for the jury to decide whether the contract for shipment had been made with the defendant company. On a second trial, the case was submitted to the jury in accordance with the views expressed by us, and resulted in a verdict for the plaintiff. It is now contended on part of the defendant that, in view of the evidence on second trial, binding instructions should have been given in favor of the defendant. The facts | burgh; yet it left unqualified quite enough are so fairly and accurately stated in appellant's history of the case that we can do no better than repeat them as they are there stated. In December, 1906, the plaintiff went from Pittsburgh to Boston, Mass., where he purchased a large consignment of fine grapes and lemons. After the purchase, at his request, he was taken by the broker through whom he had bought the fruit to the office of W. C. Brown, district freight solicitor of the Pennsylvania Railroad. The negotiations from this on were conducted entirely for the plaintiff, who spoke but little English, by Di Cola, the fruit broker, who was admittedly plaintiff's agent in the premises. The plaintiff claimed that he told Mr. Brown that he wanted to ship four cars of grapes and two cars of lemons to Pittsburgh by the Pennsylvania Railroad; that the grapes had come in on the steamer Republic, and were at the White Star Dock in Charlestown; that they wanted dry, warm refrigerator cars; and that Mr. Brown replied that he would take care, and about 11 o'clock a. m. would furnish some cars at the dock (that is, on December 4th, the day of the conversation), and would ship one or two cars, and the next day, the 5th, they would ship the other cars. During the conversation, Mr. Brown called up some one by telephone; but Di Cola did not hear or attend to the conversation. On that day, the plaintiff and his agent, Di Cola, went to the Charlestown dock about 2 o'clock in the afternoon, and there found a car in process of loading. Mr. Brown came on the dock while the car was being loaded, and told them that if the car had finished loading not later than 3 o'clock it would be shipped on the fast freight. On the afternoon of that day, December 4th, at 3 o'clock, Catanzaro, the plaintiff, left Boston, leaving his agent, Di Cola, in charge of the shipment of the fruit. On the same day, Di Cola, on behalf of Catanzaro, made out in his own office, and on forms kept by him, the regular and formal orders for the shipment of the goods over the Boston & Maine Railroad, routed to Pittsburgh over the Pennsylvania Railroad, signed them, and delivered them to the Boston & Maine Railroad, and received in return formal shipping receipts from the Boston & Maine Railroad identical with the shipping orders, except that in the shipping orders the date, number of car, and number of barrels were left blank. What follows in appellant's history of the case is more or less argumentative, and we omit it. What we have given is sufficient for present purposes. The cross-examination of Di Cola, who testified to the facts above recited, developed certain features not wholly consistent with the claim that a contract had been made with defendant company for a through shipment of the fruit from Boston to Pitts83 A.-5 to warrant an inference that such contract had been entered into by the defendant's freight solicitor. The cars furnished proved defective, and as a result plaintiff's fruit was damaged to an extent that made it valueless. [1] We do not understand that the authority of the defendant's freight solicitor to make such contract as plaintiff alleges was made (that is, for a through shipment from Boston to Pittsburgh) was denied. The question in the case therefore was, Did he make such contract? If Di Cola's testimony as to what occurred in the solicitor's office be accepted, it might well be argued that a final understanding was then and there reached, and that a through shipment was contracted for. The solicitor was told that what plaintiff wanted was a shipment of his goods from Boston to Pittsburgh over the lines of the company the solicitor represented. Not a word was said by the solicitor which would give the plaintiff to understand that any other than himself was to be consulted in the transaction. The conversation was in an office maintained by the defendant company and in charge of this solicitor. The solicitor took upon himself the task of making all provisions for the shipment; he told the plaintiff that he would see that the kind of cars he wanted were furnished, the place where and the time when they would be assembled, and that he would take care, whatever that meant. With nothing else appearing in the evidence, no other conclusion could be reached than that the contract was with the defendant company. Except as Di Cola knew or had reason to believe that there were regulations of the Boston & Maine Company which would prevent the defendant's solicitor from effecting a through shipment on account of the defendant company, a jury might well derive from what was there said and done a contract for through shipment. Certainly an uninformed shipper would, under such circumstances, naturally rest in such belief. [2] Subsequently, on the same day that the conversation occurred, the plaintiff, through his agent, Di Cola, gave to the Boston & Maine Railroad Company orders filled out on the blanks of that company for the shipment of the goods, and a day or two thereafter accepted receipts or bills of lading from that company. It may well be argued, as doubtless it was upon the trial, that these orders and receipts make against plaintiff's claim that a through contract had been made with the defendant's agent, or that the transaction was so understood. It might be further argued, as, again, it doubtless was, that, even if such contract had been made, the orders and receipts from the Boston & Maine Company showed an abandonment of such contract and the creation of a new one with the Boston & Maine for the shipment. But it can hardly be contended that such inference resulted from the orders and re- is its only object-and not to the purpose ceipts as would have justified the trial judge of the contract or anything connected with in holding, as matter of law, that they nega- it. The power in this case was perfectly tived conclusively the making of the con- executed the moment the first judgment was tract alleged, especially in view of Di Cola's confessed on January 25, 1911, and became testimony that the giving the orders was the subject of review by the court, by reamere matter of form, and that they were son of any existing facts 'not entering into given, as he supposed, pursuant to a con- the mere act of execution.' An application tract already made with the defendant com- was made, and this court, after argument pany. The case on its facts was for the and due consideration, made absolute the jury. The only error assigned was the re- rule to strike off the first judgment entered fusal of the court to enter judgment for the in January, 1911. True, this was done be defendant non obstante. As we view the case, cause of irregularities appearing on the face it would have been error to have done so. of the record; but the power authorized by The assignment is overruled, and the judg- the warrant had nevertheless been exhaustment is affirmed. ed. We cannot breathe into it the breath of life, in view of the unbroken line of decisions sustaining this construction, down to the latest case of Commonwealth v. Massi, 225 Pa. 548, 74 Atl. 419, which approved the case of Philadelphia v. Johnson, 208 Pa. 645, (234 Pa. 191) BOROUGH OF BELLEVUE v. HALLETT. (Supreme Court of Pennsylvania. Jan. 2, 1912.) JUDGMENT (§ 46*) - CONFESSION OF JUDG-57 Atl. 1114, cited by plaintiff in support of MENT-EXHAUSTION OF POWER. Power to confess judgment in a note is exhausted by entering judgment thereon after a prior judgment has been stricken off for irregularities, and the subsequent judgment entered on the same warrant will be set aside. his argument, but which we are unable to construe in any other way but as being against plaintiff's position; all the other cases are so evident as not to require citation. "The petition and rule to strike off this [Ed. Note. For other cases, see Judgment, second judgment, entered on May 24, 1911, is Cent. Dig. §§ 67, 70, 72, 85-88; Dec. Dig. therefore made absolute." 46.*] Argued before FELL, C. J., and MESTREAppeal from Court of Common Pleas, Al- ZAT, POTTER, ELKIN, STEWART, and legheny County. MOSCHZISKER, JJ. Action by the Borough of Bellevue against Ebenezer Hallett. From an order striking off judgment for plaintiff, it appeals. Affirmed. It appeared from the record that the plaintiff borough had undertaken to enter a judgment by confession against the defendant at No. 117, second term, 1911, D. S. B., on the warrant contained in a contract between plaintiff and defendant, in which proceeding a statement of claim was filed, but by mistake no formal confession of judgment was filed, for which reason the judgment was subsequently stricken off upon motion. The plaintiff then filed a new statement of claim and a formal confession of judgment, upon the same warrant and for the same debt as that involved in the former irregular proceeding. The court below filed the following opinion sur petition to strike off the judgment: "We have studiously applied the case of Philadelphia v. Johnson, 208 Pa. 645, 57 Atl. 1114, to the facts in this case, but cannot construe it in favor of the plaintiff as so ably urged in his brief. It is true the court therein substantially states that, when the purpose of the power has been fully executed by its accomplishment, it is exhausted, and the authority ends, when nothing remains to be done in pursuance thereof. This language apparently has reference to the purpose of the warrant being accomplishedthat is, the act of confessing judgment, which time instructions were given for an alleged nuncupative will decedent was mentally competent to have asked another to sign for him any testamentary paper, the probate of such nuncupative will will be refused. Where the evidence shows that at the [Ed. Note.-For other cases, see Wills, Cent. Dig. 352; Dec. Dig. & 140.*] Appeal from Orphans' Court, Allegheny County. In the matter of the Estate of Robert J. Munhall. From decree vacating decision granting probate, Teresa M. Kiefer appeals. Affirmed. Hawkins, P. J., filed the following opinion in the orphans' court: "The question here is of nuncupation. The facts are these: "Mr. Munhall became suddenly ill on December 9, 1908. On the 14th, an operation for appendicitis was performed, and for a day the symptoms seemed encouraging; but there was a relapse on the 15th, and he was taken to the Mercy Hospital, where a second operation was performed; and when he found that his recovery was hopeless he called his two brothers, William and Charles, to his bedside (priest, doctor, and attendants having left the room), and gave these instructions: to have made a will; but the evidence of what Robert said at the time the alleged instructions were given and three hours later, when Will suggested he sign the paper outlining his instructions, which had been prepared, show conclusively that he was mentally competent to have asked another to sign for him any testamentary paper. He had then an intelligent comprehension of what he had previously done, and what he would not do. He had given his instructions, and would do no more. His refusal to sign must end the matter. His purpose had been accom. plished. "This case falls within the principle of Butler's Estate, 223 Pa. 252, 72 Atl. 508. Assuming that Mr. Munhall was physically too weak himself to sign, the evidence leaves no room for doubt of his ability to ask another to do so for him. The extremity which validates nuncupation is therefore lacking; and the decree of the register, granting probate, must be set aside. "Will, I want you to settle up all my affairs; I want you to close out the business just as quickly as possible; sell it as a whole if you can; if not, do the best you can, and use your best judgment without sacrificing too much. The Carson street yards you can lease; the other lease you ought to be able to make some money out of. Settle up father's estate. I have six or seven thousand dollars on deposit in the banks, and if you need more you can make a loan on some South Side Trust stock. You will find a list of my notes and papers in the safe. You can check them all up; I think you will find everything correct. Give Marie, Catherine and Herbert [his sister and brother] $1,500.00 each. I don't want Stella to handle any of my money; I wanted to writing, purporting to be a nuncupative you and Charles to hold it in trust for her and use it for her as you think best. I want to give at least $1,000.00 to charity; $250.00 to the Hospital, the Sisters have been very kind to me; $250.00 to St. Paul's Orphan Asylum; $250.00 to the Little Sisters of the Poor, Allegheny; and the balance you can select whatever charity you wish. Have plenty of masses said for me. Pay all my just debts and divide the balance among the four of you.' "And now, to wit, December 19, 1910, this matter came on to be heard upon appeal from the decision of the register of wills in admitting to probate a certain paper, reduc will of said decedent, and answer thereto, and testimony taken before the register, having been offered in evidence with same force and effect as if the same had been taken before the court and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed that the appeal be sustained; and decision of the register, granting probate, is hereby vacated and set aside." Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. James R. Sterrett, for appellant. E. L. Kearns, for appellees. PER CURIAM. The decree is affirmed on the opinion of the learned president judge of the orphans' court. RYS. CO. (234 Pa. 193) (Supreme Court of Pennsylvania. Jan. 2, 1912.) "Toward the end of this recital, Robert, having been asked if he had made a will,' said, 'No.' 'He seemed,' said the witness, 'to have his mind made up as to just what he wanted to go through with, and he went through with it to the end.' After this witness left the room, he concluded, on consultation with his uncle, to have these instructions of Robert put in writing; and this was accordingly done by an attorney at his dictation. When, returning to the sick CITY OF PITTSBURGH v. PITTSBURGH, room about three hours after the former interview, he told Robert that he had ‘a paper here outlining the statements you made,' and the reply was: 'No, Will; I have told 1. EQUITY (§ 148*) — BILL - MULTIFARIOUSyou everything I wanted. I have nothing further to add.' Miss Vogel's (the nurse's) recollection of the reply was this: 'No, Will; I have told you everything in the presence of Charles; now let that do. I must have some sleep. I haven't had any sleep for three nights.' Robert died six or seven hours afterwards. Attending physicians gave the opinion, based on their observation, that from one hour after Robert had given the instructions to his brother Will he was unfit, physically and mentally, NESS. Whether a bill contains too many subjects, or subjects too different from each other to be litigated in one proceeding, is a matter of convenience, to be determined, in each case, under all the circumstances. so that, if the subject-matter of all claims is substantially the same, and may be conveniently considered together, the bill is not multifarious. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 341-367; Dec. Dig. § 148.*1 2. SPECIFIC PERFORMANCE (§ 91*)—Repair of STREETS-DEMAND. It is not necessary to the maintenance of a bill to compel a street railway company to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |